Let's keep it a clean Constitution

The proposed amendments are at odds with its philosophical and practical purposes.

By
JACK DAVIES

October 4, 2012 — 9:19am

Bruce Bisping, Star TribuneAround three dozen supporters for Minnesota for Marriage, the group pushing the marriage amendment, protested outside the General Mills headquarters in Golden Valley on 6/26/12. Their "Dump Gneral Mills" ralley from noon to 2 p.m. each day this week, is asking people to drop off General Mills products that will then be donated to local charity. A handfull of protestors against the marriage amendment also protested across the street from the Minnesota for Marriage supporters.

When deciding "yes" or "no" on a constitutional amendment, a voter's role changes from a selector of officeholders -- presidents, senators, legislators, sheriffs -- to "constitution maker." The voter then is not choosing between candidates for a two- or four- or six-year term, but adopting a policy for the state that is likely to last for generations. Constitution making is serious business.

I have long been an admirer of the Minnesota Constitution. It does well what a constitution should do and does hardly anything that a constitution should not do.

In the early 1970s, to protect my admired constitution from those who thought a few obsolete and awkward provisions indicated substantive defects, I undertook a stylistic rewrite of the document. I then won overwhelming approval of my draft from a Constitutional Study Commission, from both houses of the Legislature, and then, in 1974, from Minnesota voters.

So now the Minnesota Constitution is not only substantively sound, but is free of embarrassing trivia such as describing our northern border as "the British Possessions" rather than "Canada." And we took out 4,000 words that had served their purpose and become meaningless.

So now the state Constitution is not just substantively sound; it is also up to date and grammatically sound. It is a great document in all respects.

How did this come about? The answer is simple. For more than 150 years, Minnesotans -- legislators and voters -- have treated the document with respect -- and with care. We have never used it as a vehicle for ordinary lawmaking, that is, as a vehicle for overriding or substituting for legislative decisions.

We have treated it for what it is -- the charter for our state government. The question I now ask is whether either of the amendments to be voted on this November have a place in this great document.

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A good constitution, like Minnesota's, does three things. First, it sets up the structure of government. That is, it creates the legislative, executive and judicial branches and establishes a few basic rules relating to those branches and to local government units. Second, it protects our most fundamental rights. Third, it guards against having the Legislature and governor succumb to the worst temptations of financial irresponsibility, power-grabbing and favor-granting that history -- experience -- has exposed.

A good constitution, like Minnesota's, does nothing more.

A good constitution, like Minnesota's, leaves most policymaking in the hands of each new Legislature. The truth is that constitution makers, when they write or amend the basic charter, are not at that moment better informed on most issues than a future legislature will be. Unless an issue falls within one of the three things constitutions are for, the policy question of how to deal with a problem or opportunity or reality that arises in the future should be left to the future.

Some provisions of Minnesota's Constitution appear to do something more than the three appropriate constitutional functions. But, looked at realistically, each of those provisions is mostly for show.

For example, the Legacy Amendment of 2008 left the appropriation and taxing powers of the Legislature undiminished. The highway article, likewise, leaves apportionment of street and highway funds ultimately in the hands of each new Legislature, although it does compel a division of management responsibility for streets and highways between state and local governments. (That is, in essence, a government structure rule.) The constitutional mandate to create "a uniform and general system of public schools" leaves up to each new Legislature --biennium after biennium -- the power to appropriate money to support those schools, and thus the power to make that admirable mandate meaningful or meaningless.

The most common word of real meaning in the Minnesota Constitution is "may." Its frequency shows that the document rarely binds the hands of legislators to respond appropriately (if wise enough) to the opportunities of their day.

In my opinion, not one provision in the Minnesota Constitution is a precedent for adding either of this year's Legislature-shackling amendments.

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Of the two amendments to be voted on this year, the one relating to elections is more obviously an inappropriate intrusion on what should be routine legislative power. In fact, its policy first passed the Legislature in 2011 as a proposed statute. But it received just two DFL votes in the House and none in the Senate, and was vetoed by Gov. Mark Dayton. The policies in the vetoed bill were submitted as a constitutional amendment in 2012 (by a straight party-line vote in both houses) to escape the governor's veto.

The election amendment imposes detailed procedural rules for election administration. They have never been tried in a Minnesota election. Yet, if ratified, the amendment will deprive the Legislature of the power to respond to unforeseen consequences of the amendment's implementation -- and future legislatures and election officials will not be allowed to adopt newly discovered methods to achieve the alleged objectives. In short, the future is denied the power to use new knowledge and new wisdom about election administration.

Election law is complicated and fluid. We constantly find ways to make voting less expensive and more convenient. Several rural Minnesota counties have moved to voting entirely by mail as populations aged and their townships were forced to abandon handicapped-inaccessible township halls as polling places.

Election-day registration has become so popular that now 44.1 percent of all currently registered voters first registered on an election day. Nationally, several companies have developed (and are working hard to sell to states and localities) systems for secure voting on the Internet.

Election officials believe that all of these procedures would, if it is ratified, be barred by the election amendment.

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Rather than adopting new policy (new law), as the election amendment does, the marriage amendment moves to the Constitution a rule that the Legislature enacted long ago. But the statute book is where the rule should remain, if it should remain anywhere.

The only purpose for inserting the marriage rule into the Constitution is to assure that no Legislature -- or court -- of Minnesota may in the future respond to the marriage issue in the way legislatures and courts of several other states have responded in the last few years.

No matter what new information, new tolerance, new realities, new attitudes come to the community, today's policy is to prevail. But a voter -- as a constitution maker -- ought to take the position that, if those new perceptions do come (some believe they are already here, or almost here), a future legislature should have the power to give the community what the community then desires.

For a constitution maker, attitudes of today should control legislative policies of the future only when a bill-of-rights liberty is involved or when the issue is the kind where legislative temptation to overreach has frequently proved irresistible.

I realize that some view the marriage amendment as a religious issue that is worthy of something similar to bill-of-rights protection. For those Minnesotans I say: Do what you feel your religion compels you to do.

But those who believe that the issue is a religious one must remember that freedom of religion applies to everyone and that none of us has a right to impose our religious views or practices on others. So, certainly, none of us has a right to insert our religious views into the constitution -- the charter -- of the state.

Relevant here is that the Minnesota Bill of Rights denies -- for all time, some of us hope -- the power of government to interfere with the free exercise of religion. That means our government cannot impose on the community any set of religious beliefs and practices. To the extent one views marriage as a religious institution of significance, one ought to be bothered by a decision to deny -- on religious grounds -- the right of others to marry.

• • •

A statute can be amended or repealed by the same process and vote that enacted it. The same is true of constitutional amendments. So why, one might ask, is ratifying this year's amendments so serious a business? Can we not simply have the Legislature some years from now submit for voter ratification amendments to repeal this year's marriage amendment or election law amendment, if either comes to be viewed as inappropriate policy?

The reality is that undoing a constitutional provision is really difficult. Constitutional amendments require, in addition to a majority vote in each house of the Legislature, approval by a majority of the voters at a general election.

That is always a challenge, especially when ratification proponents must overcome religious or emotion-based attitudes. But one can reasonably argue that repeal of the marriage amendment, no matter how difficult, would at least be on the same playing field and under the same rules as its adoption.

Undoing the election amendment, however, would be more difficult than its adoption. In fact, trying to repeal it would not be a fair fight because its effect would be to make voting more inconvenient for almost all citizens who do not have driver's licenses.

That totals more than 200,000 Minnesota citizens who are old, young, poor or handicapped -- as well as many (mostly urban) walkers and bikers and users of mass transit. That means that many thousands of those disadvantaged by the amendment will have been nudged (by significant inconvenience) out of the electorate that would be voting on its repeal.

• • •

Looking at the titles of all 119 constitutional amendments proposed for ratification by Minnesota voters in the past 100 years, I found only two that were clearly designed to limit the power of the Legislature. The first (prohibition) was rejected. The second (freezing taconite taxes at 1964 levels) included a 25-year sunset clause, so is long gone.

Past amendments submitted for ratification mostly have freed the Legislature from earlier restraints, like the prohibition on government lotteries, or have made changes in government structure, like lengthening legislative sessions and the terms of the governor and other constitutional officers.

This year's amendments are totally different. One is designed to take from the Legislature and governor and Supreme Court the power to adopt a marriage policy different from that found in current Minnesota Statutes. The other puts in place a new and technical election law provision that will have many secondary consequences, some that are now unforeseen. And it places that law beyond the reach of future legislatures.

This rigidity is not what we want in our Constitution. It is the kind of rigidity our excellent Minnesota Constitution does not now impose on future generations.

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Jack Davies is a former state senator. He was the drafter of the form and structure rewrite of the Minnesota Constitution ratified in 1974. To read marriage amendment commentaries, go here. To read photo ID amendment commentaries, go here.